delegation of general legislative powers to the Territorial form of government, but I want to quote and I want you to verify it, sir, from the Supreme Court decision in the Thompson case:

It is our view that these antidiscrimination laws are police regulations and acts relating to municipal affairs.

Mr. HOLL. Yes, sir.

Mr. LOSER. That is the decision. That is the life of the Thompson case. That is the thing that gives it vigor.

Now anything else that Mr. Justice Douglas said in that case is what we lawyers call "dicta," isn't it?

Mr. HOLL. No, sir; for this reason, if I may answer you, sir. There were two questions presented to the Supreme Court: One, Could Congress validly delegate to the legislative assembly authority to enact that act of 1873? Having answered that question in the affirmative, the Supreme Court then proceeded to the point that you are now discussing and the basic question was, Assuming that that act was validly enacted by the legislative assembly, was that act repealed, No. 1, by the enactment by Congress of the 1901 Code of the District of Columbia

Mr. LOSER. It was not repealed.

Mr. HOLL. That was the point on which the Court held that it was not repealed, but there were two basic questions. But for that question of repeal, the status of that regulation as a police regulation would never have been significant but the point that the Court first attacked in part 1 of its opinion was the constitutional authority of Congress to authorize the enactment of that legislation.

Mr. LOSER. Well, sir, there is always the single determinative question in a law suit.

Mr. HOLL. Yes, sir.

Mr. LOSER. And the determinative question in the Thompson case was, Is this a police regulation or is it a substantive law passed by the District of Columbia Legislative Assembly? The Court held that it was a police regulation and therefore within the power of the Congress to delegate that legislative authority to a District of Columbia Legislative Assembly.

We heartily disagree.

Mr. HOLL. Yes, sir.

Mr. LOSER. You say there are two legal questions ruled in that case. Mr. HOLL. Yes, sir.

Mr. LOSER. But I have never known but one determinative question in a case.

Mr. HOLL. May I read you, sir, from the opinion of the United States?

Mr. LOSER. What I meant to say was I just recognize that there is a single question that rules the lawsuit.

Mr. HOLL. Yes, sir; but may I point out, sir, that the court of appeals in its opinion said there were two questions. I am reading

now

Mr. LOSER. They got it reversed.

Mr. MCLAUGHLIN. Mr. Chairman, they have even split the decision up into roman I and roman II. Roman I is the part we are resting on, Mr. Chairman.

Mr. LOSER. I can understand, Mr. McLaughlin, your deep interest in home rule. You have made a terrific contribution to the welfare of this community and its people, and its people owe you a debt of gratitude.

I recognize the tremendous struggle that the draftsmen of these bills have had in an effort to circumvent this provision of the Constitution.

I will not say "circumvent," but to frame a home-rule bill that would meet the four corners of the Constitution.

You gentlemen, of course, recognize the fact that the Congress in dealing with a Territory or even a State, that there is no such limitation with reference to congressional power as is found in this clause dealing with the legislative power of Congress over the District of Columbia. I think possibly that the ingenuity of the lawyers of this community has just about been exhausted in an effort to frame a bill that would meet the requirements of our Federal Constitution.

Mr. MCLAUGHLIN. Mr. Chairman, may we place in the record this paragraph of the Thompson case:

There is, however, a suggestion that the power of Congress "to exercise exclusive legislation" granted by article I, section 8, clause 17, of the Constitution is nondelegable because it is "exclusive." But it is clear from the history of the provision that the word "exclusive" was employed to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the ceding States. (See the Federalist, No. 43; 3 Elliot's Debates (2d ed. 1876), pp. 432-433; 2 Story, Commentaries on the Constitution of the United States (4th Ed. 1873), sec. 1218). Madison summed up the need for an "exclusive" power in the Congress as follows:

"Let me remark, if not already remarked, that there must be a cession, by particular States, of the District to Congress, and that the States may settle the terms of the cession. The States may make what stipulation they please in it, and, if they apprehend any danger, they may refuse it altogether. How could the General Government be guarded from the undue influence of particular States, or from insults, without such exclusive power?"

We conclude that the Congress had the authority under article I, section 8, clause 17 of the Constitution to delegate its lawmaking authority to the legislative assembly

Mr. LOSER. You are not reading from Mr. Justice Story.

Mr. MCLAUGHLIN. No. I am continuing the opinion of the Court. Mr. LOSER. What case?

Mr. MCLAUGHLIN. In the Thompson case.

We conclude that the Congress had the authority under article I, section 8, clause 17, of the Constitution to delegate its lawmaking authority to the legislative assembly of the municipal corporation which was created by the Organic Act of 1871, and that the "rightful subjects of legislation" within the meaning of section 18 of that act was as broad as the police power of a State.

Mr. LOSER. Mr. Justice Story made an observation to the effect that it was never contemplated that the Congress could delegate its full legislative powers to the local government over the District of Columbia: did he not?

Mr. HOLL. I am not aware of that.

Mr. LOSER. Do you have that quotation, Mr. Garber? Let's put it in the record.

This is section 1218 of Mr. Justice Story's "Commentaries on the Constitution," volume 2 of the 1873 edition. Quoting:

The indispensable necessity of complete and exclusive power on the part of the Congress at the seat of the Government carries its own evidence with it. It is a power exercised by every legislature of the Union, and one might say of the

world, by virtue of general supremacy. Without it not only the public authority might be insulted and a proceedings be interrupted with impunity but the public archives might be in danger of violation and destruction and a dependence of the members of the National Government on the State authorities for protection in the discharge of their functions be created, which would bring on national councils the imputation of being subjected to undue awe and influence and might in times of high excitement expose their lives to jeopardy. It never would be safe to leave in possession of any State the exclusive power to decide whether the functionaries of the National Government shall have the moral and physical power to perform their duties. It might subject the favored State to the most unrelenting jealousy of the other States and introduce earnest controversies from time to time respecting the removal of the seat of the Government.

Mr. MCLAUGHLIN. With all deference, Mr. Chairman, I did not hear Justice Story say that the Congress could not make this delegation of legislative power.

Mr. LOSER. No. He talked about relinquishing its power to a State or any form of government. It might jeopardize the very life of the Nation.

Mr. MCLAUGHLIN. I would be very much against Congress relinquishing any power.

May I put in one more paragraph from Madison's Federalist Paper No. 43, discussing this general subject? He said, and of course, the Federalist Papers were the public-relations campaign that was made by certain framers of the Constitution and get it ratified by enough States to make it effective:

The extent of this Federal District is sufficiently circumscribed to satisfy every jealousy of an opposite nature and as it is to be appropriated to this use with the consent of the State conceding it, as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it, as the inhabitants will find sufficient inducements of interest to become willing parties to the cession, as they will have had their voice in the election of the Government which is to exercise authority over them, as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them and as the authority of the legislature of the State and of the inhabitants of the ceded part of it to concur in the cession will be derived from the whole people of the State in their adoption of the Constitution every imaginable objection seems to be obviated.

In other words, they sold the Constitution to the States that ratified it, with the representation that there would be a local, municipal legislature in the District of Columbia for taking care of local purposes.

Mr. LOSER. Thank you very much.

Mr. BROYHILL. Mr. Chairman, may I make one brief observation? This is on the lighter side, Mr. McLaughlin. I would like to point out another example of possible conflict of interest between the Federal Government and any local governing body here. This is a quotation from the Congressional Record during the Territorial government debate, 1870 and 1871. It appears on page 687 of the Congressional Record and a quotation by Senator Edmunds:

** there are a great many reforms in the administration of this city government, relating to nuisances and the convenience of the people who are obligated to live here more or less time during the year, that no body of representatives who are elected by the people are likely to produce. Take, for instance, the infinite, abominable nuisance of cows, and horses, and sheep, and goats running through all the streets of this city, and whenever we appropriate money to get up a shade tree there comes along a cow or a horse or a goat, and tears it down the next day, and then we appropriate again.

The other day, I understand *** the Board of Health undertook to abolish that kind of nuisance by declaring that animals of that kind running at large,

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spoiling the streets and trees, should be kept out: and the next night the Board of Aldermen and the Common Council abolished the Board of Health for having interfered.

Mr. MCLAUGHLIN. Federal interests are very extensive here. I will admit that, Mr. Chairman.

Mr. Chairman, I wish very deply to express my sincere appreciation of the kind things that you have said. I know that you and the members of the committee realize the honesty of the District government in preparing this bill and bringing it up here based on our experience, in the feeling that this will provide a better form of government than we have for the District of Columbia at the present time.

Mr. LOSER. Thank you so much.

I am wondering if any witnesses here this morning would like to file their statements.

The chairman of the subcommittee advised me that the meeting would be adjourned until next Wednesday at 10 o'clock. I see a very distinguished man back here, Mr. Goldman, a businessman in this community, a native of the District of Columbia. He has been on this list a number of times. I know he is neglecting his business in coming over here from week to week.

If Mr. Goldman wants to testify next Wednesday, I will ask the chairman to put him up toward the top so he can get back to his business if he cares to. If not, we are always glad to see him.

That is true with reference to other witnesses.

The meeting stands adjourned until next Wednesday at 10 o'clock. (Whereupon, at 12:03 p.m., the committee adjourned to reconvene at 10 a.m. Wednesday, August 26, 1959.)

DISTRICT OF COLUMBIA HOME RULE BILLS

WEDNESDAY, AUGUST 26, 1959

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 3 OF THE

COMMITTEE ON THE DISTRICT OF COLUMBIA,
Washington, D.C.

The subcommittee met at 10 a.m., pursuant to recess, in room 445, House Office Building, Hon. James C. Davis (subcommittee chairman) presiding.

Present: Representatives Davis (subcommittee chairman), Matthews, Harmon, Smith of Kansas, Broyhill, and Multer.

Also present: William N. McLeod, Jr., clerk of the Committee on the District of Columbia, Hayden S. Garber, counsel; Ann L. Puryear, assistant clerk; Leonard O. Hilder, investigator; and Donald Tubridy, minority clerk.

Mr. DAVIS. The subcommittee will come to order, please.

This is a continuation of the hearings on all of the bills dealing with home rule for the District of Columbia.

The first witness this morning is Mr. Aaron Goldman. Is Mr. Goldman here?

Have a seat, Mr. Goldman. We will be glad to have your statement.

STATEMENT OF AARON GOLDMAN, WASHINGTON, D.C.

Mr. GOLDMAN. Thank you.

Mr. Chairman and gentlemen of the committee, my name is Aaron Goldman, a voteless citizen of Washington.

I thank you, Mr. Chairman, for this opportunity to appear before you in order to present my views in favor of H.R. 4630, and the other so-called territorial bills.

Although very mindful of my limitations, I am pleased that fortune's wheel has somehow spun my name toward the top of your list of citizen witnesses. Perhaps there is some poetic justice in this, because, as I have sat through the five previous hearings, I have had to pinch myself as I have listened to the description of that ubiquitous resident of Washington with a voting residence "back home."

From some of the observations which have been made, one might have thought that there was no such creature as the native-born Washingtonian who grew up and went to school in Washington and has remained here to run a business and raise a family.

Well, gentlemen, here sits such a person. This is indeed a small Federal site, but somehow the stork found it. A different compass heading might have landed me in Mr. Broyhill's district or Mr. Foley's